Gary Stuart Joseph

The applicant brought a motion at the start of trial seeking to strike the respondent’s pleadings due to his failure to comply with a prior order requiring monthly spousal support payments.

The respondent admitted unilaterally reducing the ordered payments and accumulating arrears of $10,032 but claimed an inability to pay due to business difficulties.

The court found the respondent provided no reliable evidence of inability to pay and noted a history of non‑compliance with support and disclosure orders.

While recognizing that striking pleadings is a drastic remedy of last resort under Rule 14(23) of the Family Law Rules, the court imposed a conditional sanction.

The respondent was permitted to attend and cross‑examine but was barred from presenting his own evidence unless he paid the full arrears before the close of the applicant’s case.

During an ongoing family law trial, the applicant sought to call two witnesses in reply concerning a child's mental health events and communications that emerged from late-produced emails.

The court considered the principles governing reply evidence, including whether the evidence addressed new matters arising from the defence or whether it constituted impermissible splitting of a party’s case.

The court held that limited reply evidence from the child’s therapist was permissible regarding specific events in June–July 2011 and related emails that gained new significance during the defence case.

However, broader inquiries into the child’s ongoing mental health and alleged information‑withholding could have been addressed in the applicant’s case in chief and were therefore excluded.

The proposed testimony of the guidance counsellor was not proper reply evidence, and the applicant’s request to reopen her case in chief was denied.

In a family law proceeding involving allegations of parental alienation, the court conducted a voir dire to determine the admissibility of proposed expert evidence from a developmental psychologist retained to provide a generic report on parental alienation theory.

Applying the admissibility framework from R. v. Mohan and the two‑stage analysis articulated in R. v. Abbey, the court considered necessity, reliability, and the balance between probative value and potential prejudice.

The court concluded that limited portions of the expert’s report explaining common alienating strategies and behaviours of alienated children would assist the trier of fact.

However, other portions—including general discussions of prevalence, cult analogies, therapeutic practices, and proposed remedial solutions—were excluded as lacking sufficient relevance or probative value.

The expert was also prohibited from answering fact‑based hypothetical questions because the retainer was limited to providing generic educational evidence rather than case‑specific opinions.

During a custody and access trial, the applicant brought a motion seeking to redact portions of a custody assessor’s notes, records, and report that referenced communications from a prior closed mediation.

The applicant argued that mediation privilege had not been clearly waived when she consented to the assessor obtaining information from the mediator.

The court found that the applicant knowingly signed a release permitting disclosure to the assessor and understood that information provided to the assessor could be disclosed in court under the assessor’s retainer terms.

The court further held that the applicant impliedly waived mediation privilege by later providing submissions discussing the mediation for the assessor’s consideration.

Given the parties’ consent and the potential prejudice to the integrity of the assessment if extensive redactions were allowed, the motion to redact was denied.

The appellant sought leave to appeal an order granting the respondent exclusive possession of the matrimonial home under s. 24(3)(f) of the Family Law Act based largely on hostile and threatening text messages sent during the parties’ separation.

The appellant argued the motion judge misapplied the law and that conflicting case law required more than text messages to establish “violence.” The court held that differing outcomes in other cases reflected discretionary factual determinations rather than conflicting legal principles.

The court found no reason to doubt the correctness of the original order and held that intimidation or psychological abuse conveyed through text messages can constitute violence depending on the factual context.

Leave to appeal was therefore denied.

The applicant and respondent separated after a 20-year marriage.

The court determined the validity of a marriage contract that excluded the respondent's interest in a family trust, finding it valid and enforceable.

The court also addressed the tracing of trust funds into the matrimonial home, finding the respondent entitled to exclude a portion of the home's value.

The court ordered a set-off of child support obligations due to a shared custody arrangement, and awarded the applicant a lump sum of $432,000 for spousal support.

The respondent's third-party claims against a family friend for invasion of privacy and interference with parental access were dismissed.

The applicant sought leave to appeal an interlocutory order directing her to provide a detailed accounting of the proceeds from the sale of a property.

The underlying dispute involved allegations of fraudulent conveyances by the applicant's former spouse and his business partner to thwart support and equalization orders.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions, no reason to doubt the correctness of the order, and no issue of general public importance, as the matter was strictly a dispute between the parties over an accounting.

Following a family law motion in which the applicant obtained exclusive possession of the matrimonial home, the court considered the appropriate costs award.

The applicant sought full recovery alleging bad faith arising from the respondent’s failure to provide timely financial disclosure.

The court declined to find bad faith, holding that the evidentiary record did not establish an intent to deceive or conceal information.

Although the applicant was the successful party, the court found her conduct partially unreasonable for failing to serve an offer to settle and for serving key affidavit evidence only two days before the motion.

Costs were reduced accordingly and a partial recovery awarded.

The appellant appealed a trial judgment that largely denied his motion to change child and spousal support and ordered him to pay significant arrears.

He argued the trial judge erred by denying an adjournment to retain counsel, imputing income without sufficient evidence, and ordering him to pay 100 percent of horse-related section 7 expenses.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion in refusing the adjournment, had a sufficient basis to impute income due to the appellant's failure to provide financial information, and correctly treated the horse-related expenses as section 7 expenses.

The appellant father appealed a decision ordering ongoing and retroactive child support for an adult child with severe disabilities.

The appellate court upheld the finding that the child qualified for support under s. 31 of the Family Law Act because her participation in an adapted educational program constituted full-time education in light of her medical limitations.

The court also upheld the retroactive support award based on the father’s blameworthy conduct in failing to disclose income increases, consistent with the principles in DBS v. SRG.

However, the court held that the impact of the adult child’s Ontario Disability Support Program benefits on the quantum of support had not been properly analyzed and required further evidentiary consideration.

That issue was remitted to the Ontario Court of Justice for determination while the remainder of the appeal was dismissed.

The accused was charged with communicating with a person under 18 for the purpose of facilitating a sexual assault after a 15-year-old complainant received solicitations via Kijiji.

The Crown's case relied entirely on circumstantial evidence, including IP address logs, computer key logger data, and cell phone records linking the offending email address and phone number to the accused.

The court found that the cumulative effect of the circumstantial evidence, including the accused's access to the specific computers and his connection to the cell phone used, proved his identity as the sender beyond a reasonable doubt.

The accused was found guilty.

The applicant mother brought a motion for exclusive possession of the matrimonial home.

The court previously denied the motion, allowing the respondent father to remain in the home.

The mother renewed her motion, providing evidence of vitriolic and threatening text messages sent by the father.

The court found that the text messages constituted 'violence' under section 24(3)(f) of the Family Law Act, as they were intended to intimidate and caused psychological harm.

Given the violence and the risk of exposing the child to adult conflict, the court granted the mother exclusive possession of the matrimonial home.

The parties appealed and cross-appealed a Superior Court decision that varied an arbitrator's award regarding child and spousal support.

The Court of Appeal upheld the appeal judge's decision, finding that the arbitrator erred in his application of the D.B.S. factors for retroactive child support, misunderstood the tax implications of retroactive lump sum spousal support, and failed to properly analyze whether post-separation income increases were related to the marriage.

Both appeals were dismissed.

The applicant wife sought an adjournment of a family law trial scheduled to commence in October 2012.

The litigation had been ongoing since 2005, with the trial previously adjourned.

The applicant argued an adjournment was necessary due to a recent document disclosure request, her new employment, and the need for time to prepare after her counsel withdrew following an unsuccessful motion for interim costs.

The court dismissed the motion, finding the disclosure request tactical, the employment issue self-created, and the withdrawal of counsel foreseeable.

The court held that granting an adjournment would cause significant non-compensable prejudice to the respondent and undermine the administration of justice.

The applicant wife moved for an order for $300,000 in interim costs, or alternatively, for the sale or encumbrance of the matrimonial home to fund ongoing family law litigation.

The court found that while res judicata did not bar the motion, the wife failed to meet her evidentiary burden.

She did not demonstrate that her claims regarding the marriage contract and family trust were meritorious, that the husband had the ability to pay the requested amount, or that the proposed expert fees and legal costs were necessary and reasonable.

The motion was dismissed with costs awarded to the husband.

The applicant brought a motion for the release of $101,290 held in trust from the sale of properties vested in her to secure unpaid child support and equalization payments.

The respondent opposed the release, arguing the applicant was in breach of prior orders and liable for security for costs.

The court granted the release of funds, finding the applicant had a strong prima facie case for fraudulent conveyance and that her claim to the funds outweighed the respondent's potential claim for security for costs.

The court dismissed the applicant's requests to vary prior procedural orders and directed the parties to attend a settlement conference.

The appellant father appealed a final order requiring him to pay prospective and retroactive child support, arguing the motions judge erred in finding his income, providing inadequate reasons, and misapplying the tests for retroactive support and undue hardship.

The Divisional Court found no palpable and overriding error in the income determination and held the reasons were adequate.

While the motions judge conflated the 'undue hardship' test for prospective support with the 'hardship' factor for retroactive support, the Divisional Court applied the correct test and upheld the retroactive award due to the father's long history of underpayment and failure to disclose income.

The appeal was dismissed.

The applicant mother brought an interim motion seeking sole custody, exclusive possession of the matrimonial home, and substantial retroactive child and spousal support based on an imputed income of $700,000 to the respondent father.

The court declined to determine custody on the limited interim record but confirmed that the child would primarily reside with the mother in the matrimonial home.

The request for exclusive possession was denied because the evidence did not establish that the father’s continued presence posed a threat to the child’s best interests under s. 24 of the Family Law Act.

The court assessed the father’s interim income at $325,000 and ordered table child support and high-range spousal support under the Spousal Support Advisory Guidelines, retroactive to November 1, 2011.

Requests for section 7 expenses and further disclosure were deferred.

The respondent brought a motion seeking to enforce a consent arbitration award arising from minutes of settlement resolving family law disputes, including property and support.

The applicant sought enforcement with an added indemnity clause relating to potential tax liability arising from a pending tax appeal, or alternatively to vary or set aside the award under the Family Law Rules on the basis of mistake.

The court found the parties had failed to address a significant potential tax liability of approximately $485,000 in the settlement despite both being aware of the issue.

Applying principles of mutual and unilateral mistake, the court concluded the parties were at cross‑purposes and would not have agreed to the settlement had they understood the risk.

The arbitration award and settlement were therefore set aside and the litigation permitted to continue.

The appellant appealed the trial judge's monetary award for unjust enrichment, lump sum spousal support, and costs.

The Court of Appeal found no error in the trial judge's calculation of the unjust enrichment award, which properly accounted for set-offs.

The court also upheld the lump sum spousal support order, noting the trial judge properly weighed its advantages and disadvantages, including the appellant's history of late payments.

The appeal was dismissed with costs.